For anyone interested in the University of Notre Dame, her Catholic mission and identity, her current capacity and her future potential for contributing to the intellectual life of the nation and the Church, I would strongly encourage you to read the lengthy interview with Father Bill Miscamble, C.S.C., available here.

Recently I attended a conference at which one of the commenters disagreed intensely with the ideas in someone's presentation. The commenter at one point said something like this: ‘We are morally responsible for the consequences of our theories!' The comment was intended as a rebuke to the presenter, an admonition that his theory, and by implication he himself, were not morally serious because of his inadequate attention to the "consequences" of his ideas.

It is no great insight to observe that every theory or idea about the law has consequences, and it is certainly right to say that people who champion theories are remiss if they do not think about the consequences that might follow from them. Usually these points do not need stating: even avowedly non-consequentialist interpretive theories are often guided by the power of consequences. When one makes an argument for the broad protection of religious liberty, for example, it is important and worthwhile to reflect on the costs (likely and possible) of that position and to acknowledge those costs frankly. And when one argues for the converse, the obligation to think hard about losses and costs is the same. My own view is that this should be no less true for courts than for anyone else (though I recognize the difference between the rhetoric of a judicial opinion and the bases of judgment). But this is a straightforward way in which the criticism can be true (though not, in my opinion, in the specific case in which it was made).

But there is also a way in which the criticism is deceiving, uncharitable, and ultimately unconducive to the kind of self-critical assessment that it exhorts.

"Whoever desires to serve as a soldier of God beneath the banner of the Cross in our Society, which we desire to be designated by the Name of Jesus, and to serve the Lord alone and the Church, his spouse, under the Roman Pontiff, the Vicar of Christ on earth, should, after a solemn vow of perpetual chastity, poverty and obedience, keep what follows in mind. He is a member of a Society founded chiefly for this purpose: to strive especially for the defence and propagation of the faith and for the progress of souls in Christian life and doctrine, by means of public preaching, lectures and any other ministration whatsoever of the Word of God, and further by means of retreats, the education of children and unlettered persons in Christianity, and the spiritual consolation of Christ's faithful through hearing confessions and administering the other sacraments. Moreover, he should show himself ready to reconcile the estranged, compassionately assist and serve those who are in prisons or hospitals, and indeed, to perform any other works of charity, according to what will seem expedient for the glory of God and the common good".

On Friday, it was reported that Texas governor (and possible presidential candidate) Rick Perry had expressed the view that if Roe v. Wade were to be overturned, the legality of abortion would have to be decided at the state level. "You either have to believe in the 10th Amendment or you don’t,” Perry was quoted as saying, evidently denying the authority of the federal government to legislate in the defense of unborn human life.

I offered criticism of Governor Perry on this matter in a statement quoted in a press release by the Susan B. Anthony List, a Washington, D.C. based pro-life organization:

“It is important for Governor Perry and for all Americans to recognize the responsibility of the national government under Section 5 of the 14th Amendment to ensure that the guarantees of Section 1 of that Amendment are honored by all 50 states. Those guarantees include the following: ‘nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.’ As a matter of indisputable scientific fact, the child in the womb is a living human being. As a matter of moral truth, deeply embedded in our legal and constitutional traditions, all human beings are persons. Thus, by the clearest logical implication, the national government is empowered and obligated by our Constitution to ensure that unborn human persons are equally protected in their most fundamental right---the right to life. Because this is an expressly delegated power, there is no 10th Amendment basis for denying or relieving the national government of its responsibilities, along with the states, to protect the child in the womb.”

Further to Rick's question about Leo XIII's understanding of the *meaning* of the "two there are" thesis, I am reminded of that touching line of Pius IX (related by Cardinal Ferrata in his memoires), which Rick and I have discussed: "My system and my policy have had their time; but I am too old to change. My successor will have to do it." Leo XIII certainly did change course, but not quite in the way the Murray revision insists. He affirms two powers, but not in splendid isolation from each other. Consider, for example, the following from Leo's Apostolic Letter of March 19, 1902, written at the very end of his long pontificate: "[S]ociety, in its foolhardy effort to escape from God, has rejected the divine order and revelation; it is thus withdrawn from the salutary efficacy of Christianity, which is manifestly the most solid guarantee of order, the strongest bond of fraternity, and the inexhaustible source of all private and public virtue. This sacrilegious [sic] divorce has resulted in bringing about that trouble which now disturbs the world. Hence it is the pale of the Church which this lost society must re-enter, if it wishes to recover its well-being, its repose, and its salvation. Just as Christianity cannot penetrate into the soul without making it better, so it cannot enter in public life without establishing order. . . . If it has transformed pagan society . . . so, after the terrible shocks which unbelief has given to the world in our days, it will be able to put that world again on the true road, and bring back to order the States and peoples of modern times. But the return of Christianity will not be efficacious and complete if it does not restore the world to sincere love of the one Holy Catholic and Apostolic Church." Thus Leo. And regarding "the line of development" George Weigel discerns from Leo forward to Benedict XVI, it needs to include acknowledgment of such as the following, from Pope St. Pius X's Consistorial Allocution of Nov. 9, 1903: "We do not conceal the fact that We shall shock some people by saying that We must necessarily concern ourselves with politics. But anyone forming an equitable judgement clearly sees that the Supreme Pontiff can in no wise violently withdraw the category of politics from subjection to the supreme control of faith and moral confided to him."

It's all part of the tradition, and, with E.A. Goerner toward the end of his Peter and Caesar, I believe that the tradition points beyond Murray, et al., etc., to a deeper "integrism or integralism" (Goerner, 263) that perhaps involves not just law ("the canonsists") but true "public worship" (273 sqq.) Goerner of course goes on to raise the need for "prophetic criticism" that will chasten the integralists' temptations toward externalia (268), but Goerner's conclusion is worth serious reflection: "Neither integrism nor prophetic criticism by itself is wholly Christian. The Christian community needs both spiritual styles in order to be fully itself" (272). Would George Weigel agree? I suspect Leo would agree, at least with due qualification.

A few days ago Rick wrote about the reports from Ireland that may lead to Irish legislation which would mandate priests to break the seal of the confessional. He also invited a response. We know that other jurisdictions have also been contemplating similar changes in their laws as well. Well, I suppose what Caesar gives, Caesar can claim return. That is positive law-making pure and simple. In the context of American law, the priest-penitent privilege traces its heritage to the 1813 case in which Mr. and Mrs. Phillips were charged with the receiving stolen goods belonging to Mr. James Cating. Phillips had received Cating’s property from sources tied to the Reverend Father Anthony Kohlmann, S.J. It seems that Father Kohlmann had received the stolen goods during the administration of the sacrament of confession/reconciliation. It was the intent that the stolen property would be returned to its rightful owners.

Father Kohlmann was summoned to testify in the judicial proceedings concerning his knowledge about the source of the stolen property that had come into his possession. He could not answer citing the Canon Law norm regulating the secrecy of the confessional. Canons 983 and 984 of the present Code of Canon Law preserve the inviolability of the seal of the confessional. It is a crime for the priest to disclose what he knows from the administration of the sacrament; moreover, the confessor is absolutely forbidden to use the knowledge received from a confession that in any way that might prejudice the penitent.

Under the civil law, this and all other evidentiary privileges (e.g., spousal privilege; lawyer-client privilege; doctor-patient privilege; and the privilege of news reporters) are creatures of the positive law. Spouses, lawyers, doctors, and reporters have been held in contempt for not disclosing what they may have known about another that was arguably protected by the privileged communication they claimed. Others have been prosecuted for their refusal to testify. The fundamental justification for these privileges is that they are important to society and the law that governs it. While it is a fact that a witness is typically obliged to disclose all that he or she knows about the subject to which he or she has been called to testify, privileged communications that emerge from certain relationships are to remain in confidence and protected from disclosure.

Clearly those who confess sins which may also be great offenses against their neighbor are in trouble not only with the civil authorities but also with the law of God. But unlike the person who commits a crime and does not also take it to confession, the penitent is in a different case. He or she has already expressed contrition before God. Might this also lead to a parallel expression before the neighbor who has been wronged? In exercising his canonical office, the priest has a role in exhorting the penitent to reconcile with the neighbor who has been wronged. Those who do not confess will not have the benefit of this exhortation. Would it not make sense to see that preservation of the priest-penitent privilege may very well lead to greater justice?

When legislatures contemplate modifying or repealing the priest-penitent privilege, they should take stock of this. The New York court which heard the case involving Father Kohlmann came to realize this and upheld the seal of the confessional. (More can be learned about the case of Father Kohlmann by reading the essay “Privileged Communications to Clergymen” at 1 Catholic Lawyer 199, 1955.)

I pray that the legislatures contemplating modifying or abolishing the evidentiary privilege will preserve it. While it may not seem to be this, the seal of the confessional can be a means of furthering justice rather than its nemesis. As one who happens to be both lawyer and confessor, I think the position has great merit that advances the common good.

Steve Schneck writes, at the National Catholic Reporter, in defense of conscience-protection regarding "medical procedures that must be covered by new insurance policies offered under the health care reform law." He writes as someone who was a Catholic supporter of Kathleen Sebelius (despite her bad record on abortion) and of President Obama:

Those of us who supported Sebelius’ nomination argued forcefully that she should not be penalized because her conscience reached different conclusions on contentious issues from those reached by the leaders of the Catholic church. But it would be a tragic irony if, in adopting the new rules, Sebelius declined to afford to Catholic church organizations the same conscience rights we invoked when defending her nomination. Those of us who joined “Catholics for Sebelius” did not do so to see our conscience rights eviscerated.

Now, in my view, this is not quite the right way to put it. Even assuming that it was / is "conscience" that has animated Sebelius's abortion-related actions and positions, the issue is not merely her disagreement on "contentious issues" with conclusions on reached by "leaders" of the Catholic Church, but rather her active support for policies that, the Church authoritatively teaches, are unjust. In any event, I hope that the President, and Sec. Sebelius, listen to the voices of people like Mr. Schneck. At the same time, I do not believe, with all due respect, that it should come as a surprise if they do not.

And while we are on the subject of Pope Leo XIII, Evangelical Catholicism, and church-state relations, well understood, it is well worth reading John Courtney Murray's paper, "Leo XIII: Separation of Church and State":

Leo XIII developed the theory and practice of Church-State relationships amid the conditions created by the peculiar nineteenth-century plight of the so-called Catholic nations of Europe and Latin America.The major feature of the situation consisted in the efforts of an activist ideological sect to effect, through the control and use of governmental power, the politico-social change known as "separation of Church and state." This current phrase was pregnant both of an ideology and of a political and social program. It meant, first, the alteration of the Christian structure of politics, which had been characterized by the traditional duality of Church and state, in the direction of a juridical and social monism. It meant, secondly, the evacuation of the Christian substance of society through the establishment of a surrogate political religion which went by the name of "laicism." The first subject of the present article is separation of Church and state in this pregnant sense, which is the sense in which Leo XIII understood the thing. . . .

Here is a George Weigel essay, "Benedict XVI and the Future of the West," which I read recently and liked very much. A taste:

year ago, my subject would probably have struck some as counter-intuitive, implausible, even absurd: why would an octogenarian German theologian with little practical experience of political and economic life have anything interesting or important to say about "the future of the West"? Pope Benedict XVI's Westminster Hall address last September ought to have put paid to at least some of that cynicism. For as many Britons conceded after last September's papal visit, the elderly German theologian had indeed given the United Kingdom, and the rest of the West, a lot to think about in his reflections on the relationship between the health of a culture, and the health of the democratic institutions that culture must sustain. . . .

Evangelical Catholicism, in the line of development that runs from Leo XIII through Benedict XVI, . . . takes a rather different stance toward public life than the Catholicism of Christendom (whose conception of Church and State—or, more broadly, Church and Society—long outlasted the 16th-century fracturing of Christendom). Evangelical Catholicism declines the embrace of state power as incompatible with the proclamation of the Gospel: the Gospel is its own warrant, and the power of that warrant is blunted when coercive state power is put behind it, however mildly. Evangelical Catholicism is also wary of a direct role by the Church, as institution, in the affairs of the state. There may be moments when a robustly evangelical Church must speak truth to power, directly and through its ordained episcopal leadership, bringing the full weight of their unique form of authority to bear on a matter in public dispute. But the normal mode of the Church's engagement with public life will not be that of another lobbying group. Rather, Evangelical Catholicism takes its lead from the Second Vatican Council's Decree on the Laity (Apostolicam Actuositatem), and from Blessed John Paul II's teaching in the encyclicals Redemptoris Missio and Centesimus Annus and the post-synodal apostolic exhortation Christifideles Laici: it seeks to form the men and women who will, in turn, shape the culture that creates a politics capable of recognising the transcendent moral norms that should guide society's deliberations about the common good. . . .

I'd welcome, in particular, Patrick Brennan's thoughts about the essay, given that he knows so much more about (inter alia) Pope Leo XIII's writings and thought than I do.

Here is a link to the chapter, which I contributed to a volume of First Amendment Stories (edited by Andy Koppelman and me), on the Court's decision in Kedroff v. St. Nicholas Cathedral.

This chapter, from Foundation Press’s forthcoming volume First Amendment Stories, examines closely the background, context, and implications of the Supreme Court’s underappreciated but highly significant decision in Kedroff v. St. Nicholas Cathedral. It is suggested that Kedroff – like the Steel Seizure case, which was argued and decided during the same year – reminds us of the importance of the structural devices employed in our Constitution to protect liberties and enhance democracy. These devices include, of course, the separation of powers and federalism, as well as the pluralistic principle of church-state separation, correctly understood. As Mark DeWolfe Howe observed, in a short essay published in the Harvard Law Review soon after the Kedroff decision, the Court in that case, by affirming the constitutional basis of church autonomy, engaged “a classic problem of political theory,” that is, the “pluralistic thesis . . . that government must recognize that it is not the sole possessor of sovereignty,” or, as another writer put it, that “Caesar . . . is only Caesar, [and so should] forswear any attempt to demand what is God’s.”

(My fellow MOJ-er, Tom Berg, also did a chapter, on the school-prayer cases.) Keep your eyes open for the volume, which (if I say so myself) has a lot of really good pieces in it, by smart and interesting people. It's winding its way toward publication in the Fall of 2011. Go ahead and pre-order yours!